ILLINOIS POLLUTION CONTROL BOARD

April

22,

1993

VEACH OIL COMPANY

 & LAKE

)

 EGYPT WATER DISTRICT,

)

Petitioner,

v.

)

 PCB 92—202

)

 (Variance)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

GREGORY VEACH APPEARED ON BEHALF OF PETITIONER VEACH OIL COMPANY;

JAMES

 B. BLEYER APPEARED ON BEHALF OF PETITIONER EGYPT WATER

DISTRICT;

STEVE EWART APPEARED ON BEHALF OF ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD

 (by G.

T.

 Girard):

On December

7,

 1992, Veach Oil Company

 (Veach Oil)

 filed a

petition for variance from 35

 Ill.

 Adm. Code 602.105(a),

Standards for

 Issuance, and from 35 Ill.

 Adm.

 Code 602.106(a),

Restricted Status.

 The petition asserts that “the purpose

of

this variance request is to allow the extension of the present

water distribution system of the Lake of Egypt Water District

(District)

 which

 is necessary to enable it to serve commercial

property located adjacent to the intersection of Illinois Route

148 with Interstate

57

 in extreme southern Williamson County,

 Illinois,

which property is owned by the petitioner”.

The

District

 is on restricted status due to inadequacies of the

treatment pland and raw water source.

 (Ag. Rec.

 at 4—5.)

By

order of December

17,

 1992,

 the Board ordered Veach to file an

amended petition joining the District, and supplying certain

additional information.

On January

 1993, Veach filed an amended petition.

The

amended petition joins the District as a petitioner and requests

hearing on the petition.

On February

16,

 1993,

 the Board received the Illinois

Environmental Protection Agency’s

 (Agency) recommendation w.ith a

motion to file instanter.

 On February 25,

 1993,

 the Board

granted the motion to file instanter.

 The Agency recommends that

the

Board

deny

 the requested variance.

Hearing was held on this matter on March

3,

 1993,

 in Marion,

Williamson County,

 Illinois.

 There were no members of the public

present at that hearing.

 Closing arguments and a reply from

Veach

Oil

were

received

March

19,

1993,

and

April

1993,

~ I

 -0227

2

respectively.

 Closing arguments were received from the Agency on

March

29,

 1993.

 Lake of Egypt Water District did not submit

arguments

 or present witnesses at hearing.

BACKGROUND

Veach Oil Company owns a parcel of commercial property at

the intersection

 of Illinois Route 148 and Interstate

57

in

Williamson County,

 Illinois.

 (Am. Pet.

at

 l.)l

 Veach Oil’s

property

 is located within one mile of the District’s supply

source and approximately one thousand yards from the existing

water main distribution

 line.

 (Am.

 Pet.

 at 1.)

The District supplies potable water to approximately

 13,300

persons,

including

5,161

residential,

industrial

and

commercial

users.

 (Ag.

 Rec.

 at 3.)

 The District obtains its water from

Lake of Egypt

 accordance with

 a contract with the Southern

Illinois

 Power which permits the District to draw raw water from

Lake

Egypt.

(Ag.

Rec.

3.)

 The provisions

 of the contract

require

the

District

 obtain an alternative source of water

in

the

event

the

District’s

 water use reaches “thirty million

(30,000,000)

 gallons during an average 30 day period

(or

1

million

 gallons per day

 (“MGD”)), the water contract directs the

District to obtain an additional source of water within a period

of three years”.

 (Ag.

 Rec.

at

3.)

 The Agency’s records indicate

that the District’s use has reached that level; however,

an

alternative source has not been found.

 (Ag.

 Rec.

at

3.)

REGULATORY FRAMEWORK

Veach Oil asks the Board to grant

 a variance from 35

 Ill.

Adm.

 Code 602.105(a)

 and 602.106(a).

 Section 602.105(a)

provides:

The

Agency

shall

not

grant

any

construction

operating permit required by this Part unless the

applicant submits adequate proof that the public water

supply

will

constructed,

modified

operated

not to cause

 a violation of the Environmental

Protection

Act

(Ill.

Rev.

Stat.

1981,

ch.

111

1/2.

pars.

 1001 et seq.)

 (“ACT”),

 or of this Chapter.

1The amended petition will

 be cited as “Am.

 Pet.

at

~

the

agency recommendation will be cited as

 “Ag.

 Rec.

at

“;

 Veach

Oil’s Closing argument and reply will be cited as “V.0.

Br.

at

“

and

“V.O.R.

Br.

_“,

 respectively; the Agency Closing

argument will be cited

as

 “Ag.

Br.

at

“;

 and the transcript

will

 be cited

 as Tr.

at

“.

1~)

I

~ I -U228

3

Section 602.106(a)

 provides:

a)

 Restricted

 status shall be defined as the Agency

determination,

 pursuant to Section 39(a)

 of the Act and

Section 602.105, that

 a public water supply facility

may no longer be issued a construction permit without

causing

 a violation of the Act or this Chapter.

In determining whether any variance is to be granted, the

Act requires the Board to determine whether a petitioner has

presented adequate proof that immediate compliance with the Board

regulations at issue would impose an arbitrary or unreasonable

hardship.

 (415

 ILCS 5/35(a)

 (l992).2)

 Furthermore,

 the burden

is upon the petitioner to show that its claimed hardship

outweighs the public interest in attaining compliance with

regulations designed to protect the public

 (Willowbrook Motel

v.

Pollution Control Board

 (1977),

 133 Ill.App.3d

 343,

 481 N.E.2d

1032).

 Only with such showing can the claimed hardship rise to

the level

 of arbitrary or unreasonable hardship.

 Where the

petitioner seeks to extend

 a variance,

 the petitioner must show

satisfactory progress.

A further feature of

 a variance

 is that it

is,

 by its

nature,

 a ~~p~ar

 reprieve from compliance with the Board’s

regulations

 (Monsanto Co.

 IPCB

 (1977),

 67 Ill.2d 276,

367

N.E.2d 684),

 and compliance

 is to be sought regardless of the

hardship which the task of eventual compliance presents

an

individual polluter.

(~.)

 Accordingly,

 except in certain

special circumstances,

 a variance petitioner is required,

as

a

condition to grant of variance,

 to commit to a plan which

is

reasonably calculated to achieve compliance within the term of

the variance.

The grant

 of variance from 35

 Ill.

 Adm.

 Code 602.105(a)

and

602.106(a)

 does ~0j absolve a petitioner from compliance with the

standard at

 issue,

 nor does it insulate a petitioner from

possible enforcement action brought for violation of that

standard.

 The underlying standard remains applicable to the

petitioner regardless of whether variance

 is granted or denied.

REQUESTED VARIANCE

Specifically Veach Oil

 is seeking this variance to remove

the District from restricted status so that Veach Oil can extend

the District’s water line and add a new water main on its

property

 in Williamson County.

 Veach Oil will use this extension

to service

 a convenience store/truck and auto plaza with related

2This section of the Act was previously codified at Ill.Rev.

Stat.

 1991,

ch.

 111½,

 par.

 1035(a).

‘~

I -0229

4

dining facilities Veach Oil wishes to construct on its property.

(Am.

Pet.

2.)

The amended petition also indicates that the District

supports the petition for variance.

 (Am.

 pet.

at

3.)

AGENCY RECOMMENDATION

The Agency recommends that the variance be denied.

 (Ag.

Rec.

at

1.)

 The Agency believes that a variance to allow

connection

 of new facilities to the District water system is

unwarranted because of the current status of the District’s

system.

 Of particular concern to the Agency are the system

incidence of low pressure and volume within the distribution

system

well

the

lack

firm

commitment

and

timetable

the District to upgrade and expand its water treatment plant and

to secure a new and reliable source of raw water for its system.

(Ag.

 Rec.

 at 11-12.)

DISCUSSION

Veach Oil maintains that failure to grant the variance to

Veach Oil would result

 in an unreasonable or arbitrary hardship

for Veach Oil.

 (V.O.Br.

 at 2.)

 Veach Oil argues that absent the

variance Veach Oil will be unable to develop the land.

 Other

alternative water sources,

 such as a well,

 are too costly to

develop and

it

 is questionable that water could be found,

according to the petitioner.

 (V.O.Br.

at

3.)

Veach Oil further maintains that upon completion of the

project, the business will have gross receipts from sales

exceeding

 “four million dollars

 ($4,000,000)

 per year and will

employ an average

 of thirty

 (30)

 persons

 in the operational phase

and approximately seventy—five

 (75) during the construction and

development phases of the this project”.

 (Am.

 Pet.

 at 4.)

 Thus,

Veach Oil argues that granting the variance will provide

‘substantial employment opportunities” and enhance the tax base

in

 a depressed area of the state.

 (Am. Pet.

at

7.)

Veach Oil also argues that the granting of a variance will

not result

 in injury to the public.

 (V.0. R.Br.

at

6.)

 In fact,

Veach Oil maintains that the impact on existing customers

 of the

District is “minimal since it is anticipated that the monthly

usage

 of water by the petitioner’s business development

 is less

than twenty thousand

 (20,000) gallons per month for at least the

next five

(5)

 years”.

 (Am. Pet.

 at 8.)

Veach Oil indicates that the variance would not exacerbate

the low pressure problem and argues that no evidence was provided

hearing

that

would

indicate

that

the

anticipated

usage

would

~I

I -0230

5

effect the low pressure problem.

 (V.0.

 R.Br.

 at 6.)

 Veach Oil

maintains that although the District is operating at or near

capacity at

 is operating plant,

 the District

 is presently

undertaking improvement to its water system and plant which will

double its capacity to treat and supply potable water.

(V.

0.

Br.

 at 3-4.)

 Veach Oil also maintains that the completion of the

improvements, later this year, will alleviate the low pressure

problems.

(V.

0.

Br.

 at 4.)

Veach Oil also argues that the District’s draw from the Lake

of Egypt will decrease in the fall of 1993,

 as the Burnside water

system will cease purchasing

 its water from the District.

 (Tr.

at

49;

 V.0.

Br.

 at 7.)

 Veach Oil points out that the Burnside

water system uses an average of 85,000 to 110,000 gallons per day

of water which far exceeds the usage that Veach Oil will add.

(V.

0.

Br.

at

7.)

The Agency recommends denial of the variance.

 The Agency

argues that the District is on restricted status and has been

since

 1989 with no set compliance schedule.

 (Ag.

Br.

 at 1.)

Further,

 the Agency argues that the District “has not been able

to provide adequate water service to its existing customers;

adding even the smallest water user to a system that

 is presently

on restricted status

 is not in the public interest”.

 (Ag.

Br.

at

1.)

The Agency points out that it

 is not questioning the good

faith effort of the District to comply with the Board’s

regulations;

 however, there

 is no set compliance schedule.

 (Ag.

Br.

 at 2.)

 Further,

 the development plan calls for using 5-10

acres

of

a

 28 acre site and Veach Oil indicated

 it had contacted

fast food restaurants and motel and lodging type businesses

concerning use of the property.

 (Ag.

Br.

 at 2-3.)

 Thus,

the

Agency is concerned that here is a potential for other businesses

to be developed on this property without the need of an Agency

permit,

 creating an even greater water demand on the district.

(Ag.

Br.

 at 3.)

The Agency also argues that the location of the Veach Oil

property

is

 in the vicinity of the “Houston Water Tower”

 (Houston

tank).

 The Houston tank is a silo tank that is 61 feet tall with

an overflow point

of

 60 feet.

 Customers served by that tank have

complained about low pressure.

 (Ag.

 Br. at 3-4.)

 Even though

the District has taken measures to correct the problem as late as

February 26,

 1993,

 low pressure was still discovered at the homes

receiving water from the Houston tank.

 (Ag.

Br.

 at 3—4.)

The

District conceded that the addition of Veach Oil will increase

 demand in the vicinity of the Houston tank.

 (Tr.

at

 83.)

Finally,

 the Agency concedes that the District has plans to

increase its capacity to 2 million gallons per day and to

increase the District ~1r~w from the Lake of Egypt.

 (Ag. Br.

at

I -0231

6

4.)

 However,

 the District has no projected dates for when the

project will be complete and further,

 the project

 is dependent on

securing

 a Farmers Home Administration loan.

 (Ag.

Br.

 at 4.)

The Board

 is persuaded that a variance should not be granted

at this time.

 The Board

 is concerned with the failure to present

a specific compliance plan in view of the public health concerns

expressed by the Agency.

 The Board

 is not convinced that the

addition

of

 a new main will have no effect on the present

customers

 of the District.

 Further, the District

 is already

drawing more water from Lake of Egypt than the District has

contracted

 for.

 The petitioner did indicate that alternative

sources are being sought; however, at this time the District’s

only source

 is Lake of Egypt.

The property is currently being used for agricultural

purposes.

 (Tr.

at

 16.)

 Further,

 at hearing, when Mr. Veach was

asked

 if any harm or injury would result to Veach Oil if the

project was delayed,

 Mr. Veach stated:

I don’t see any harm other than we would

 like

to develop this piece of property and without

water, we can’t develop the property.

We

should like to expand our business and this

is one way of doing it.

(Tr.

at

 28.)

In addition,

 the Agency has also pointed out that there

 is no

indication that the additional revenues from the development of

the property would be new revenues.

 The development could simply

result

 in removing revenues from other areas

 in the county.

Therefore,

 the Board finds that denial of the variance will not

result

 in an arbitrary or unreasonable hardship.

The Board further notes that Veach Oil draws an analogy

between

 its circumstances and those of the petitioner in

Caterpillar Tractor Co.

v.

 Illinois Pollution Control Board,

48

Ill.App.3d

 655,

 6 Ill.Dec.

737

 (3d Dist.

 1977)

 (Caterpillar).

In

the Caterpillar case the Board denied the variance and the court

overturned the Board’s decision because the court saw no

indication

 in the record that the Caterpillar plant contributed

to air quality violations and that there was injury to persons

 living

 in the area

 of the plant sufficient to outweigh the

economic impact of closure of the plant.

 This case is clearly

distinguishable from Caterpillar in that there

 is a clear link

between the extension of the water line for Veach Oil and low

pressure areas in the District’s

 system.

 The addition of Veach

Oil could r~esult in further water quality problems for the

District and thus present the potential for danger to public

health.

~ 1-0232

7

For the reasons discussed above, the Board denies the

variance sought by Veach Oil for its facility in Williamson

County,

 Illinois.

ORDER

The variance sought by Veach Oil for property located at the

intersection of

 Illinois Route

 148 and Interstate

 57 in

Williamson County,

 Illinois

 is denied.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41)

 provides for the appeal of final Board orders within 35

days.

 The Rules of the Supreme Court of Illinois establish

filing requirements.

 (But see also,

35

 Ill.

 Adm. Code 101.246,

Motions for Reconsideration,

 and Casteneda

v.

 Illinois Human

Rights Commission

 (1989)

 132 Ill.

 2d 304,

 547 N.E.2d 437; Strube

Illinois

Pollution

Control

Board,

 No. 3-92-0468,

 slip op.

at

4—5

 (3d Dist.

 March 15,

 1993).)

 Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board,

 hereby certify that the above order was adopted

 on the

~2y-~---~

day

_____________,

 1993,

 by a vote of

~-O

~)i.

Dorothy M.

Clerk

Illinois Poljution Control Board

Li~

 I -U233